Citation Nr: 1520344
Decision Date: 05/12/15 Archive Date: 05/26/15
DOCKET NO. 13-19 844 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake City, Utah
THE ISSUE
Entitlement to service connection for the cause of the Veteran's death.
ATTORNEY FOR THE BOARD
J. Nichols, Associate Counsel
INTRODUCTION
The Veteran served on active duty from September 1968 to March 1970. He died in February 2011, and the appellant has claimed benefits as his surviving spouse.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 decision by the Department of Veterans Affairs (VA) Regional Office (RO) Pension Management Center in St. Paul, Minnesota. The appeal has since been handled by the RO in Salt Lake City, Utah.
In a May 2013 decision, the Board acknowledged that the appellant had been substituted in this case under 38 U.S.C.A. § 5121A and denied a claim for service connection for a low back disability. The Board also remanded the claim for service connection for the cause of the Veteran's death for the issuance of a statement of the case. The AOJ subsequently issued a statement of the case (SOC) in May 2013, and the appellant submitted a substantive appeal in June 2013.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
In consideration of the appellant's arguments and pursuant to VA's duty to assist the claimant, a medical opinion should be obtained to determine whether the Veteran's cause of death was related to his military service, to include exposure to herbicides.
The Board notes that the Veteran was not service-connected for any disabilities during his lifetime. His death certificate shows that he died in February 2011, and the cause of death was listed as an ischemic cerebrovascular accident due to aortoesophageal fistula due to esophageal carcino sarcoma. The Veteran did have verified service in the Republic of Vietnam.
Accordingly, the case is REMANDED for the following action:
1. The AOJ should refer the Veteran's claims folder to a VA examiner for a medical opinion addressing the etiology of the cause of the Veteran's death. The VA examiner is requested to review all pertinent records associated with the claims file, including the service treatment records, post-service medical records, death certificate, and the appellant's assertions.
The Veteran was not service-connected for any disabilities during his lifetime. His death certificate shows that he died in February 2011, and the cause of death was listed as an ischemic cerebrovascular accident due to aortoesophageal fistula due to esophageal carcino sarcoma.
The Veteran had verified service in the Republic of Vietnam. Therefore, he is presumed to have been exposed to herbicide agents during his military service.
The examiner should opine as to whether it is at least as likely as not that the Veteran's cause of death (including an ischemic cerebrovascular accident, aortoesophageal fistula, and esophageal carcino sarcoma) was caused by or otherwise related to his military service, including his herbicide exposure therein (notwithstanding the fact that it may not be a presumed association).
(The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.)
A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.
2. After completing the above action and any other necessary development, the claim should be readjudicated. If the benefits sought are not granted, the appellant should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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J.W. ZISSIMOS
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).